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Monday, June 20, 2011

Meet Elsa Alcala, newest Texas Court of Criminal Appeals Judge

While I was out on vacation a little over a week ago, Texas' latest Court of Criminal Appeals Judge, Elsa Alcala, was invested as the court's ninth member, replacing Charles Holcolmb who announced his retirement last year. Alcala was first appointed a state district judge by George W. Bush after a stint in the Harris County DA's office, then later appointed to the 1st Court of Appeals by Gov. Rick Perry. Reported the Austin Statesman, “Alcala, one of five children who lost both parents by age 14, marveled that an 'impoverished, orphaned Mexican-American girl can, through public education and the grace of God, become a jurist on one of the state’s highest courts.'” (In a photo from the Statesman, at left, IMO she looks a bit like Supreme Court Justice Sonia Sotomayor.)

Since her nomination was announced, I've wondered where Alcala will fit on a court led by a self-avowed "pro-prosecution" judge known for often strained, pro-government opinions. When I asked attorneys I trust about Alcala, the negative responses I received actually related to her husband and brother-in-law, Dan and John Spjut, rather than her. Her husband, a former Houston police lieutenant turned attorney, earned notoriety in a case covered well by Rick Casey at the Houston Chronicle in which his brother repeatedly failed to meet with his client, prepare for trial, or even show up to court in a family law dispute, sending his clearly unprepared sibling Dan to try the case at the last minute. Having never spoken to the client before, Mr. Spjut's direct examination lasted less than four minutes. “Like the ‘sleeping lawyer’ case," wrote 1st Court Justice Terry Jennings, "this case will stand as a significant embarrassment in the history of Texas jurisprudence.” Indeed, Casey reported, Jennings said "in dissent that Walker received 'assistance' of counsel 'far below that afforded to the criminal defendant in the infamous sleeping lawyer case.'” Two of Alcala's colleagues on the 1st Court of Appeals, however, inexplicably found the Spjuts absentee lawyering was not ineffective. Dan Spjut disputed speculation that the ruling was made out of "professional courtesy" to his wife.

That said, it's certainly not fair to judge Alcala as a jurist on the basis of failings by her husband or brother-in-law. So over the past few days I took some time to skim dozens of criminal opinions she authored on the 1st Court of Appeals - not all of them by any stretch but most of them over the last three years or so and perhaps enough to get a sense of her approach. It's somewhat difficult to infer a Court of Appeals judge's views because they're so bound by the Court of Criminal Appeals' opinions, and for the last dozen years or so Texas' high criminal court has been dominated by Judge Keller and Co., who reflexively go out of their way to side with prosecutors in virtually every instance. But at least one can get a sense of the judge as a writer and thinker, and whether her tendency is to follow stare decisis (past court precedents) or hew her own path.

My take is that, while Alcala is surely conservative and pro-law enforcement, rarely dissented to pro-government opinions in criminal cases, and while she's particularly likely to side with the government in cases involving her husband's former employer at HPD, the judge doesn't appear to be nearly as knee-jerk in siding with prosecutors as, say, Judges Keller or Hervey on the Court of Criminal Appeals. Most of her decisions affirmed lower court rulings and stuck closely to existing precedent, but there were also instances where she demonstrated an ability to think for herself.

A good example may be found in a case out of Waller County in which she upheld a drug possession charge against a defendant but overturned a simultaneous conviction for possession inside a correctional facility. The drugs were in the defendant's purse when she was arrested which was taken to the jail by a police officer where it was logged, searched, and the drugs (less than a gram) discovered. Alcala reasonably ruled that the defendant did not bring drugs into the jail but in fact the arresting officer did. But I can easily imagine the pro-government wing of the CCA allowing that sort of phony baloney charge to stand.

In another case, she upheld a Batson challenge (racial bias in jury selection) out of Smith County in which the current and former DA were implicated in racially biased "strikes" of all African-American jurors. Certainly the CCA's record on Batson challenges, most famously in the Miller-El case, decided by the US Supreme Court in 2005, can hardly be described as sympathetic toward Batson claims. But Alcala's decision fairly closely tracks SCOTUS reasoning in the Miller-El case to evaluate race-neutral claims for juror strikes in a way I doubt Judge Keller would find remotely palatable. In another case involving a jury trial at municipal court, she reversed and remanded the conviction to a County Court at Law because a proper Batson hearing hadn't been held.

In one of Alcala's rare dissents in a criminal case, she would have reversed and remanded a conviction because the trial court did not instruct the jury to consider the possibility of convicting only on a lesser included offense, since the jury could have plausibly inferred that the defendant was not in immediate flight when an assault occurred a half hour after a theft. I don't suspect for a moment Judge Keller or Hervey on the CCA, for example, would have blinked before signing off on the majority opinion, but Alcala's dissent smartly parses the case law to make distinctions between the instant case and those cited by her colleagues affirming the decision.

Similarly, in another case, Alcala authored a decision reversing a conviction and ordering a new trial because a judge did not give a jury instruction involving self defense in a case where an abused son killed his father. An earlier opinion overturned the murder conviction of a 70 year old widower on the same grounds.

In a habeas writ from a misdemeanor DWI case, Alcala sided with the defendant to say that the trial court had erred in refusing to grant habeas relief, saying his retrial was barred by double jeopardy. According to the opinion, "The constitutional double jeopardy protection embraces the defendant’s right to have his trial completed by a particular tribunal. [citation omitted] When a mistrial is declared over the defendant’s objection after the jury is sworn, a retrial is barred by double jeopardy unless there was manifest necessity for the mistrial." In that case, a juror had a heart attack during trial, but the defendant was willing to go forward using only five jurors. The judge instead declared a mistrial and ordered the defendant retried, which Alcala and her colleagues said violated US Supreme Court precedent.

None of that, of course, should lead readers to think Alcala's 1st Court of Appeals work wasn't mostly supportive of prosecutors, and often when there was a judgment call to be made, she went against defendants. In one case, she upheld indecency with a child by contact even though the alleged victim's sister - who supposedly witnessed the event and confronted the alleged molester, according to the victim's testimony - insisted she recalled no such incident. While corroboration is not required to secure a conviction in such cases, when a corroborating witness is named and that person wholly disputes the victim's account, it's hard for me to see how a rational juror could say there's not reasonable doubt. Alcala, though, deferred to the jury, refusing to "substitute our judgment for theirs." There were other examples where Alcala sustained convictions based on remarkably shaky evidence, at best, on the same grounds.

In another case, Alcala had no problem with officers talking a witness into a greater level of certainty during a photo lineup, covering up facial hair in the photos and giving her confirming details about his height that that may have later tainted a live lineup. Of course, Texas hadn't then passed the legislation approved this year governing lineups and requiring police to have policies on the subject, but she certainly seemed willing to give officers a lot of leeway in such matters.

Even more leeway was granted when Alcala authored an opinion overturning a conviction of a Harris County Sheriff's deputy involving a telemarketing scam run on behalf of the union, using a much more defense-oriented analysis of sufficiency of the evidence than any average, non-officer defendant should ever expect to receive from her. All of a sudden, when a Harris County Sheriff's deputy was accused, her habitual deference to juries went out the window.

In all, one imagines Governor Perry could have done worse than Alcala's appointment (particularly given that last year rumors swirled that Williamson County DA John Bradley might be named to the slot). Her views don't reflect my own, but neither do I suppose she'll just be another yes-woman to Judge Keller and the faction she leads on the CCA. Grits has written before that "There is no liberal wing on the Texas Court of Criminal Appeals. There's a conservative wing ... and a more or less totalitarian wing." From reading this sample of opinions, I'm hopeful, if not certain, Alcala may end up residing in the former camp.

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